People v. Gustavo-Cano

• Decision Date: 26 April 2017
• Parties: The PEOPLE, etc., respondent, v. Jose GUSTAVO–CANO, appellant.
• Court: New York Supreme Court — Appellate Division

149 A.D.3d 1100
50 N.Y.S.3d 882 (Mem)

The PEOPLE, etc., respondent,
v.
Jose GUSTAVO–CANO, appellant.

Supreme Court, Appellate Division, Second Department, New York.

April 26, 2017.

Gary E. Eisenberg, New City, NY, for appellant.

Thomas P. Zugibe, District Attorney, New City, NY (Itamar J. Yeger of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Rockland County (Kelly, J.), rendered March 18, 2015, convicting him of attempted assault in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the Supreme Court failed to inform him of the immigration consequences of his plea of guilty is unpreserved for appellate review (see People v. Peque, 22 N.Y.3d 168, 183, 980 N.Y.S.2d 280, 3 N.E.3d 617 ; People v. Stewart, 142 A.D.3d 629, 629, 36 N.Y.S.3d 602 ; People v. Egbunike, 133 A.D.3d 776, 777, 19 N.Y.S.3d 184 ; People v. DiPietro, 115 A.D.3d 977, 982 N.Y.S.2d 397 ). In any event, the record reveals that the court advised the defendant of the possibility that he might be deported as a result of his plea of guilty (see People v. Martial, 125 A.D.3d 688, 689, 2 N.Y.S.3d 591 ; People v. Taveras, 123 A.D.3d 745, 745, 997 N.Y.S.2d 490 ; People v. DiPietro, 115 A.D.3d at 977, 982 N.Y.S.2d 397 ).

Inasmuch as the record does not conclusively demonstrate whether the defendant's counsel advised him of the immigration consequences of his plea of guilty, the defendant's contention that his counsel was ineffective for failing to do so cannot be resolved without reference to matter outside the record. Accordingly, a CPL 440.10 proceeding is the appropriate forum for reviewing the defendant's ineffective assistance of counsel claim in its entirety (see People v. Taveras, 123 A.D.3d at 745–746, 997 N.Y.S.2d 490 ; People v. Rodriguez, 115 A.D.3d 884, 982 N.Y.S.2d 334 ; People v. Drammeh, 100 A.D.3d 650, 651, 953 N.Y.S.2d 274 ).

ENG, P.J., HALL, ROMAN and HINDS–RADIX, JJ., concur.